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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
titution's preservation of the right to a jury trial." Id. at 188.
Any further concern PIC may have regarding the timing requirement of the jury fee is foreclosed by the case of State ex rel. Prentice v. County Court, 70 Wis. 2d 230, 234 N.W.2d 283 (1975). There, a motorist filed her demand for a jury trial with payment of jury fee one day outside the applicable timetable. As a result, the court set the matter for bench trial. The motorist argued, among other things, that denial of a jury trial deprived her of a basic constitutional right. This court disagreed, reasoning that "while a defendant has a right to trial by jury in a civil case, he has no vested right under art. I, sec. 5, to the manner or time in which that right may be exercised or waived, since these are merely procedural matters to be determined by law." Id. at 240. This holding is dispositive in the present case, resulting in waiver of PIC's right to a jury trial.
Thus, the relevant question becomes whether the circuit court properly exercised its discretion when it denied PIC's motion to enlarge the time on the basis of excusable neglect. We have described excusable neglect as "'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' It is 'not synonymous with neglect, carelessness or inattentiveness.'" Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982) (quoting Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969)). When analyzing this standard, we may undertake our own review of the record to determine whether it "provide support for the circuit court's decision." Id. at 471.
In the present case, the circuit court admittedly did not apply the excusable neglect standard when confronted with PIC's request the day of trial for an enlargement of time. Instead, it recognized that there were "a lot of issues about what evidence ought to be before the trier of fact and what won't go before the trier of fact." The court observed that "the majority of [the issues]" were "raised by the defense and Dr. Lindemann which have complicated this case tremendously . . . ." The court appeared concerned about getting the "parties their day in court" and not having to reschedule the case. It noted that because of the many complications raised, including motions in limine by both sides together with a request for additional discovery, that it would be difficult, even as a trial to the court, to get this case completed in the allotted time.
Although the circuit court did not apply the proper legal standard, we are satisfied that the record supports its decision to deny PIC's request for a motion to enlarge time. The reason for this largely stems from PIC's actions, or lack thereof, after mailing in its late payment. At that time, PIC had the option to be forthright, notify the circuit court and opposing counsel about the problem, and move for an enlargement of time to pay the jury fee. It chose none of these options. Indeed, 15 months passed by before the issue was raised. Even then, it was not raised by PIC but rather by opposing counsel. We view these facts as fatal to PIC's claim.
On this matter, Hedtcke is instructive. There, this court made clear that, "an enlargement of time will be allowed after the time has run only when the initial failure to do the act was the result of excusable neglect and there has been no inexcusable delay in moving for enlargement." Hedtcke, 109 Wis. 2d at 469-70 n.3 (emphasis added). Although Attorney Peterson's illness may have accounted for the initial failure to pay the fee, it cannot justify the subsequent delay in moving for an enlargement of time. See also Millis v. Raye, 16 Wis. 2d 79, 8
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